CAN YOU FILE A LAWSUIT FOR DANGEROUS PUBLIC PROPERTY?

Any condition of public property that is the cause of an injury can be proven as dangerous. To do so while prosecuting a personal injury claim requires an understanding of the statutory basis of liability and any potentially applicable government immunities. There are also important time deadlines to file a notice of claim with the public entity responsible for the dangerous property.

NOTICE OF CLAIM TO PUBLIC ENTITY

With limited exception, no lawsuit for monetary damages may be brought against a public entity unless a written claim has been properly filed within six months of the date of injury. When injured by the fault of a government entity, even if you do not intend to sue, it is important to file a claim to protect your rights and keep your options open.

The California Tort Claims Act outlines the procedures for filing a claim. If the public entity is a county or local government entity, a claim should be filed directly in person or by certified mail return receipt requested with the entity’s governing board or clerk.

Pursuant to California Government Code section 910, a claim against a public entity must contain the following:

The claimant’s name and post office address;
The post office address for notices;
The date, place, and circumstances of the occurrence giving rise to the claim (that is, describe what happened and how you were injured);
A general description of the injury, damage, or loss;
The name(s) of the government employee(s) causing the injury, if known;
If the amount is less than $10,000, the dollar amount claimed (including an estimate of future injury) and the basis for computing the amount; and
If the amount is greater than $10,000, you do not have to set out a specific amount on the claim form. You must, however, indicate whether the case would be a “limited civil case.” A “limited civil case” is where the amount in dispute is less than $25,000.

BASIS OF A CLAIM FOR DANGEROUS CONDITION OF PUBLIC PROPERTY

The statutory requirements to pursue a liability claim for a dangerous condition of public property is laid out in California Government Code section 835:

“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

In short, a public entity may be liable for injury if the entity either created a dangerous condition on its property or neglected to fix a known dangerous condition prior to the injury.

A DANGEROUS CONDITION

There is no strict interpretation as to what constitutes a “dangerous condition.” Ultimately, each case depends upon its own facts and circumstances. A single remedy for one claim may not be appropriate for another claim. Here are the governing rules of what constitutes a dangerous condition:

“‘Dangerous condition’ means a condition of property that creates a substantial risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code Section 830 subd. (a).);

“Public property is in a dangerous condition within the meaning of section 835 if it is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” (Cordova v. City of L.A. (2015) 61 Cal. 4th 1099, 1105.);

Public property may also be in a dangerous condition “because of the design or location of the improvement, the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use.” (Bonnano v. Central Contra Costa Transit Auth. (2003) 30 Cal.4th 139, 149.)

RETAIN AN EXPERT EARLY TO IDENTIFY THE DANGEROUS CONDITION

To identify a dangerous condition, one should employ an expert whose expertise relates to the potential dangerous condition. The right expert is immensely important, as not only can he or she identify the dangerous condition, the expert can also identify theories to pursue, recommend evidence to obtain, and suggest preemptive measures to avoid likely asserted immunities.

LIABILITY

Dangerous condition liability is first and foremost dependent on the ownership of the property. Generally, a public entity will confirm ownership in response to a letter requesting ownership information.

Beyond simple ownership, there may be cases in which control of a dangerous condition is an issue. The public entity’s relationship to the dangerous property does not necessarily imply control to protect against or warn of potential hazards. It is important to determine who has the power to rectify the dangerous condition.

This is often an issue in cases involving adjacent property. “Adjacent property’ as used in the definition of `dangerous condition’ refers to the area that is exposed to the risk created by a dangerous condition of the public property. A public entity may be liable only for dangerous conditions of its own property, but its own property may be considered dangerous if it creates a substantial risk of injury to adjacent property or to persons on adjacent property; and its own property may be considered dangerous if a condition on the adjacent property exposes those using the public property to a substantial risk of injury.” Bonanno v. Central Contra Costa Transit, 30 Cal.4th 139, 148 (Cal. 2003)

An easy and standard example to illustrate this concept is the case of a tree on private property obstructing the view of a stop sign. Although the tree is on private property, the public entity which controls the roadway may be liable for the obstructed stop sign.

INVESTIGATE BEFORE FILING A LAWSUIT

As there is limited time to file a lawsuit against a public entity, it is critical to correctly identify the defendant which controls the dangerous condition property. If a report of the incident exists, such as a police report or a traffic collision report, it can help identify the responsible entity. If further investigation is required before filing, a retained expert should be able to help determine the responsible entity.

The maximum amount of information about the location should be obtained, including but not limited to design history, accident history, and previous complaints. Most of this information can be obtained directly from the public entity by submitting a California Public Records Act request. By law, with the exception of records exempt from disclosure, every state or local agency must promptly make requested records available.

This information can be used to prove the existence of a dangerous condition. Accident history can be used as evidence if and only if the conditions under which the previous accident occurred were the same or substantially similar to the one in question. (Mixon, supra, 207 Cal.App.4th at 137-138.)

However, this does not work conversely, although a public entity will likely try to argue so. The lack of similar accidents neither provides evidence that the condition is not dangerous nor definitively establish non-dangerousness absent other evidence. (Lane v. City of Sacramento (2010).

It is important to note that valuable information can be obtained by simply searching the internet. You may find articles or blogs regarding the location and any prior incidents. Moreso, you may find a study commissioned by the municipality addressing the dangers of the location prior to your incident, displaying the municipality’s failure to take action.

Furthermore, it is critical to photograph and videotape the location as soon as possible. The last thing you want is for an entity to correct the defect before it is documented.

DUE CARE

Many times, the defendant will focus on the conduct of the involved individuals. However, by law, the due care requirement does not require the plaintiff to prove that the property was used with due care at the time of the injury, either by himself or by a third party. (Lane, supra, 183 Cal.App.4th at p.1347) If the condition poses a substantial risk of injury to someone exercising due care, the condition may be considered dangerous. The entity is not liable if the property is safe when used with due care and the risk of harm exists only when one does not exercise due care. By the same token, the public entity is not liable if the condition becomes dangerous only when misused. (Gov. Code, Section 830 subd. (a))

TRIVIAL RISK

Often in dangerous condition cases involving conditions such as uneven sidewalks or potholes, the defendant will argue that the defect is “trivial.” Pursuant to California Government Code section 830.2, the court may determine that the risk created by the condition was of such a minor, trivial or insignificant nature that no reasonable person would conclude that the condition created a substantial risk of injury when the property is used in a reasonably foreseeable manner.

However, this defense is not a true affirmative defense. Instead, the burden of proof falls on the plaintiff to establish that the defect caused the injury and was not trivial. The plaintiff must satisfy its duty by a preponderance of the evidence – that it is more likely true than not true based on the evidence presented that the condition was dangerous. Additional factors are first considered, including the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area. If these factors are not enough to indicate that the defect was sufficiently dangerous to a reasonably careful person, the court will deem the defect trivial.

Beyond these additional factors, the court must look at whether the defect was conspicuous enough to put the entity on notice, which includes consideration of the defect’s seriousness, visibility, frequency with which the area is traveled, and the likelihood that a reasonable inspection would have revealed the defect. (Stathoulis v. City of Montebello, (2008) 164 Cal.App.4th 559, 567-568)

It is important to note that there is no fixed standard in height, size, etc. as to what makes a defect trivial. When a defendant asserting that the defect was trivial focuses exclusively on the type and size of the defect, it is effective for the plaintiff to argue that additional applicable factors and the totality of the circumstances prove the defect to be more than trivial.

NEGLIGENCE

To proceed under a negligence theory, the plaintiff must prove that the public employee’s conduct was unreasonable in light of the foreseeable risk of harm. Evidence that a public employee deviated from well-accepted standards, or did not use standards at all, will support a dangerous condition claim based upon negligence.

Pursuant to California Government Code section 835.4, a public entity is not liable for a dangerous condition if:

(1) The act or omission was reasonable
(2) The action taken to protect against the risk, or the failure to act, was reasonable

The reasonableness of the action or inaction of the public entity shall be determined by taking into consideration the time and opportunity it had to take action and by weighing the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of protecting against the risk of such injury.

As this defense is unique to public entities, it is important to note that this is a separate defense that applies even if the plaintiff has established that the defendant entity’s conduct was unreasonable.

SUFFICIENT NOTICE

Pursuant to California Government Code section 835.2, in order to prove dangerous condition liability the public entity must have notice of the dangerous condition and have had subsequently failed to take corrective action. A public entity has “actual notice” if it has substantial knowledge that the condition exists and knew or should have known of its dangerous character. A public entity has “constructive notice” if it has been established that the condition existed and was of such an obvious nature that the public entity should have discovered the dangerous condition.

Sufficient notice is a difficult element for the plaintiff to prove. The use of photographs, records showing requests for repairs, inspection plans, and prior complaints can all show the obviousness of the defect. Another strategy worth pursuing is speaking with local businesses and residents about how long the dangerous condition has existed, complaints that have been made, and visits to the location by public entity personnel.

Constructive notice may also be shown under the “reasonable inspection test.” The plaintiff can attempt to demonstrate that the dangerous condition of the property would have been revealed had public employees exercised due care when operating under an inspection system that is “reasonably adequate to inform the public entity whether the property was safe for the intended use…” (Gov. Code Section 835.2 subd. (b)(1).) It is important to note, through the civil discovery process the inspection systems used by the entity should be disclosed. The public entity can and should be challenged to explain all of its reasons for failing to use its own inspection system, or a retained expert can identify the inspection system that should have been in place.

CAUSATION

Furthermore, a causal connection between injuries and the dangerous condition must be shown.

However, the dangerous condition does not need to be the sole cause and does not need to be solely responsible for the injury. Even if negligent action by a third person aided in producing the injury, a dangerous condition can still be a “substantial cause.” A public entity may be liable for a dangerous condition if some physical characteristic of the property exposes its users to increased danger from third party conduct. (Cerna v. City of Oakland (2008))

A common example is a public parking structure with a poorly lit staircase, allowing criminal activity to take place. While the criminal activity by a third party is the definite cause of the injury, the poorly lit staircase created a dangerous condition and caused an increased danger of the activity. It is important to note, the California Supreme Court held that a plaintiff is not required to prove that the alleged dangerous condition also caused the third party conduct. (Cordova, supra, 61 Cal.4th at p.1099.)

Ultimately, if the dangerous condition case involves conduct by a third party, the third party conduct must be linked to a physical aspect of the property for which the public entity has some control. Otherwise, a public entity cannot be liable for a third party’s misconduct.

IMMUNITIES

Public entities have many statutory immunities. These statutory immunities are codified in the California Government Claims Act as affirmative defenses which must be specifically pleaded. To combat the asserted immunities, it is critical for the plaintiff’s counsel to send discovery and obtain the information upon which the pleaded immunities rely on. The defendant may file a dispositive motion based upon these immunities, so it is important to send exhaustive discovery to assess the evidentiary basis for each of the asserted immunities.

DESIGN IMMUNITY

One of the most commonly asserted immunities in response to a dangerous condition claim based upon roadway conditions or construction on public property is “design immunity.” Pursuant to California Government Code section 830.6, a public entity claiming design immunity must show:

1) A causal relationship between the plan and the accident;
2) Discretionary approval of the plan prior to construction; and
3) Substantial evidence supporting reasonableness of the plan or design.

Only if the facts are undisputed can the first two elements be resolved as issues of law. Even if evidence of reasonableness is disputed, the third element only requires evidence of solid value that reasonably inspires confidence. The court determines the third element as to whether there is substantial evidence supporting that a reasonable public employee could have adopted the plan or that a reasonable employee could have approved the plan or the standards for the design. (Alvis v. County of Ventura (2009) & Laabs v. City of Victorville (2008).)

Plaintiff’s counsel should request any and all applicable plans related to the design of the location, including all updates and changes after the initial design. Furthermore, counsel should request for all standards that were used in the design and construction. After careful review, plaintiff’s counsel should set depositions of those persons involved in the design and approval to determine if standards were not followed in the design or construction.

It is effective to pursue whether changed circumstances may impact application of the immunity. Design plans which may have met demands in the past may no longer be applicable because of a change in circumstances. For a plaintiff to show a loss of design immunity under changed conditions, they must show three things:

1) The plan or design has become dangerous because of a change in physical conditions;

2) The public entity had actual or constructive notice of the dangerous condition thus created;

3) The public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings.

(Alvis, supra, 178 Cal.App.4th at p. 554.)

It is important to note, when pursuing the changed circumstances exception to design immunity, the change must be one to the physical condition.

TRAFFIC SIGNS

There is no liability on behalf of the public entity for failure to provide traffic signs or signals. A condition is generally not dangerous because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, speed restriction signs or roadway markings as described in the Vehicle Code. (Gov. Code Section 830.4.) However, there exists a “concealed trap” statute which provides for the existence of liability for failure to provide a signal or device when the condition “constitutes a trap to a person using the street or highway with due care.” (Law Rev. Com. Comment to Gov. Code section 830.8.) “This ‘concealed trap’ statute applies to accidents proximately caused when, for example, the public entity fails to post signs warning of a sharp or poorly banked curve ahead on its road or where a design defect in the roadway causes moisture to freeze and create an icy road surface, a fact known to the public entity but not to unsuspecting motorists, or where road work is being performed on a highway.” (Chowdhury v. City of L.A. (1995).)

NATURAL CONDITIONS IMMUNITIES

If the incident occurred in a natural setting, the circumstances may constitute the “natural conditions immunity.” California Government Code section 831.2 states:

“Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river, or beach.”

The immunity has been applied to many conditions and has been broadly construed to provide immunity even when the natural conditions have been affected by human activity or improvements. (Knight v. City of Capitola (1992).)

It is important to note that this immunity is unlike others in that it is absolute and applies regardless of whether the public entity had knowledge of the dangerous condition or failed to give warning.

“Trail immunity” is another absolute immunity which applies regardless of failure to warn. Pursuant to California Government Code section 831.4, the trail immunity applies to unpaved roads and trails used for access to outdoor recreation areas for fishing, hiking and other recreation, so long as the road or trail is not a public street or highway. The immunity may also apply to paved trails, walkways and paths providing access to unimproved property when the public entity has reasonably attempted to provide adequate warnings of hazards. Determining whether a property is a trail depends on a few considerations, including the definition of the property, the purpose for which it is designed and used, and the purpose of the immunity statute. (Amberger-Warren v. City of Piedmont (2006).)

Another common immunity is the “weather condition immunity.” A public entity is immune for an injury caused by “the effect on the use of streets and highways of weather conditions such as fog, wind, rain, flood, ice or snow.” The immunity does not apply if the effect “would not be reasonably apparent to, and would not be anticipated by, a person exercising due care,” or where the weather conditions “resulted in physical damage to or deterioration of the street or highway. (Gov. Code. section 831.) To fight a public entity asserting the weather condition immunity, it is effective to link the weather condition to a defect of the roadway and ultimately establish that a reasonable person would not have anticipated the effect of the combined conditions.

CONCLUSION

There are many legal challenges in obtaining compensation for damages caused by dangerous conditions existing on public property. There exist even more immunities for the public entities that can be asserted in their defense. As every claim for dangerous condition of public property is unique, it is important to work with an attorney familiar with these laws to prosecute a claim and obtain maximum compensation for the injured victim.